John R. Rodman, Jr. ("Husband") appeals a family court denial of his motion to vacate a previous order, which, by the adoption of an agreement between Husband and Janet F. Rodman ("Wife"), awarded Wife "reimbursement alimony."
Husband and Wife participated in a marriage ceremony on August 19, 1999. Husband, however, was not legally divorced from his prior spouse (his fifth wife) until August 31, 1999. In September 2001, Wife discovered Husband was still married to another woman on the date of their marriage.
In November 2001, the parties, voluntarily and with ample opportunity to seek the advice of counsel, entered into a written settlement agreement. Although not officially represented by counsel until later, Husband was aided during the agreement negotiations by an attorney and family friend, who helped him draft some documents. The parties agreed in writing, inter alia, to the following:
Under the heading "ALIMONY/INSURANCE," Wife agreed to accept $150,460 payable in 120 monthly increments of $2,158, as "reimbursement alimony" for debt Husband
On March 1, 2002, the family court granted Wife a decree of separate support and maintenance,
On March 28, 2003, more than one year following the order, Husband filed a motion to vacate the family court's decree of separate support and maintenance on the ground that the marriage was void ab initio and, as a result, any agreement entered into regarding alimony is null and void. Pursuant to Rule 60(b), SCRCP, the family court denied Husband's motion to vacate on the ground that it was filed more than one year after the date of the initial order. This appeal followed.
SCOPE OF REVIEW
On appeal from the family court, this court has jurisdiction to find the facts in accordance with its own view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 328, 526 S.E.2d 241, 244-45 (Ct.App.1999). This court, however, is not required to disregard the family court's findings; nor should we ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Badeaux v. Davis, 337 S.C. 195, 202, 522 S.E.2d 835, 838 (Ct.App.1999); Smith v. Smith, 327 S.C. 448, 453, 486 S.E.2d 516, 519 (Ct.App.1997).
Husband argues the family court erred by denying his motion as time barred under Rule 60(b), SCRCP. Husband
Rule 60(b), SCRCP, reads:
The rule continues, "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment or proceeding was entered or taken." Rule 60(b), SCRCP.
It is undisputed that Husband's motion to vacate was filed more than one year following the entry of the family court's order; thus, to be considered timely under the rule, the motion must be based on either subsection (4) or (5). Because Husband makes no claim that the judgment has been satisfied, the sole issue before this court is whether the family court order is "void" under the rule. See Rule 60(b)(4), SCRCP.
The definition of "void" under Rule 60(b) "only encompasses judgments from courts which failed to provide proper due process, or judgments from courts which lacked subject matter jurisdiction or personal jurisdiction." McDaniel v. U.S. Fid. and Guar. Co., 324 S.C. 639, 644, 478 S.E.2d 868, 871 (Ct.App.1996). Husband argues the family court erred in applying the one-year deadline to his motion because the family court lacks subject matter jurisdiction to adopt a property agreement incident to a marriage that was void ab initio.
Because the property agreement was adopted by the family court in response to Wife's petition for annulment and
There is no legal distinction between a marriage which is annulled and one terminated by reason of bigamy, as they are both void ab initio, or "from the inception." Splawn v. Splawn, 311 S.C. 423, 425, 429 S.E.2d 805, 806 (1993). In fact, the South Carolina Supreme Court has specifically held the family court has subject matter jurisdiction to equitably distribute property in a bigamous marriage. Id., 311 S.C. at 424, 429 S.E.2d at 806. Following the analysis of White and Splawn, we find the family court had subject matter jurisdiction to adopt the agreement of the parties. Because the family court had subject matter jurisdiction to decide the matter, Husband's motion to vacate the order was untimely under Rule 60(b), SCRCP.
Because Husband's motion to vacate was untimely, the family court properly denied the motion. The decision of the family court is therefore
GOOLSBY and ANDERSON, JJ., concur.